From: email@example.com (Carl Kaun)
Subject: Religious Technology vs. Netcom-On-Line
Date: 22 Feb 1995 23:38:17 GMT
Organization: Booz-Allen & Hamillton
Apologies if this turns out to be a duplicate post. It was supposed
to go out yesterday, but I think there were problems.
I attended the hearing described below. I did not take notes at the
hearing, and not being a lawyer, do not fully understand the nature of
the legal comments. Still, my recollections may have some benefit,
and are provided in that event. Question marks indicate where I did
not hear or cannot recall clearly what was said, or where I have a
question. Perhaps someone with legal background can answer some of
these. Where I am adding commentary should be clear from the use of
the first person, or by other qualifications. Full rights to
reproduce or reuse in any form are granted.
C-95-20091: Religious Technology vs. Netcom-on-Line, Judge Ronald Whyte
presiding -- 2/21/95 hearing at Federal Court in San Jose (10:00-11:00)
Plaintiffs: Attys McShane, Small, Korbin, others whose names I didn't
catch (5 total).
Defendants: Atty for Netcom and associate, Atty for Klemesrud
(operator of BBoard), Dennis Erlich
The purpose of the hearing was to show cause re. a preliminary
injunction (same as temporary restraining order or 'TRO'?).
Judge Whyte had initial concerns about whether the scope of the
seizure order was exceeded. He asked what material (on a list
provided by plaintiff, allegedly an inventory of materials taken in
the seizure) was trade secret, and what was copyrighted. Plaintiffs
could not identify which was what, and were given until Feb 24th to
provide that identification. There was some discussion about sealing
exhibits (presumably documents containing trade secrets), but no
materials to be sealed were identified.
Small made initial remarks, talking about the execution of the seizure
order and items taken. He said that Netcom could "write a program to
identify publications from sites (purportedly) publishing copyrighted
materials, to enable a more in-depth review of these". Plaintiff did
not seem to make many points with Judge Whyte.
Erlich provided a statement to the court, and made additional comments
to the effect that:
(1) materials in his possession were obtained legally, being
provided by various mechanisms including given or loaned by others
(presumably obtained legally by them?), being purchased, or obtained
as part of being a minister in the Church of Scientology. He
called the judge's attention particularly to documents identified
as being hardcopies in this regard.
(2) no materials were identified to him as trade secrets.
(3) postings to internet were made in form of commentary or satire (the
word 'satire' was a significant element in comments during the
early parts of the hearing), and were paragraphs or at most a
couple of pages, and constituted fair use of the materials.
(4) his use of the materials was not for monetary profit or gain
(inferring that it was therefore beyond the scope of copyright law?).
(5) (execution of?) the seizure order violated his 1st and 4th Amendment
rights, making him the aggrieved party, on which basis he was
entering suit (against the Church of Scientology and individuals
involved in the seizure).
(6) he was not permitted to monitor removal of materials, nor was
he provided an inventory of items taken, except as a single
unsigned page, and that because the materials were deleted, he
has no way to verify what was claimed to have been seized (had in
fact been in his possession?)
(7) he had indicated his willingness to cease publication of and
delete from his files any copyrighted or trade secret materials,
and had requested plaintiff provide a means to identify/verify
these, which plaintiff had not done.
The Attorney for Klemesrud submitted a brief to the court, and in
commment cited various precedent why Klemesrud should not be included
in the suit; and indicated the impact of requiring Klemesrud to comply
with what plaintiff wanted would be to shut down the B-board, thereby
removing access to Internet for some 500 users.
The Attorney for Netcom submitted a brief to the court, and in comment
merely indicated Netcom's role as essentially a common carrier, with
no control over content, and having no more liability than a
bookseller would have.
Somewhere along the line, attorneys for both Netcom and Klemesrud
indicated they were filing motions for dismissal. Small tried to
argue why they should not be dismissed with some sort of analogy about
how a private toll booth operator should deny highway access to a
particular car that had been described to the operator. I hope the
judge thought it as ridiculous as I did.
In subsequent comment, the attorney for Netcom made what I thought the
neatest point of the day. He pointed out that plaintiff could not
there in the court identify what was or was not copyrighted from a list
of materials in his possession, yet plaintiff was asking Netcom to
make that same determination nearly instantaneously on a very great
volume of material. The only alternative to this would be to block
access to individuals, for which there is absolutely no precedent.
Late in the hearing, Small tried to make some point about how Erlich
had initially cooperated with the seizure, but later on tried to block
it "when he had called the press and guzzled some beer". You had to
be there! Such inappropos slander attempts come across almost as CoS
signature. He also tried to express outrage that Erlich had a scanner and
was copying whole documents into his computer (even if it could be
established what was being scanned, aren't backup copies of
copyrighted materials allowed under various conditions?).
Judge Whyte released Netcom and Klemesrud from the injunction/TRO
"without prejudice" (??), and indicated he would replace the TRO
against Erlich with a more carefully worded one. A further hearing
with Erlich, etc. will occur on March 3rd. This might "take place
by telephone, to alleviate travel costs" (aren't hearings like this
supposed to be public, and doesn't a telephone conference preclude that?)
I was not impressed by any crispness in the arguments, e.g. to
establish any standards or boundaries (perhaps it is too
early for this). Indeed, I have seen clearer commmenting on the net.
One thing kind of surprised me -- I would have thought the court would
take possession of the purportedly copyrighted materials to insure
there was no tampering with "the evidence", especially given CoS'
reputation. This was not done, nor was there any suggestion made to do